FCC Addresses Open Internet Challenge in Court

WASHINGTON�The FCC late Monday filed its opening brief in the industry challenge to its Open Internet order and its reclassification of Internet access as a telecommunications service under Title II common carrier rules, and it took the commission 157 pages to make its case, which included that the FCC was free to change its mind about the classification of broadband access re reconsider earlier decisions.

According to the FCC's summary of its argument, it reasonably interpreted the definition of telecommunications service in the Communications Act to include the "separable" telecommunications component of broadband Internet access service (BIAS), and used its court-recognized subject matter expertise to interpret a vague definition. "As the Supreme Court held, the term �telecommunications service� is ambiguous and the relevant analysis of whether a broadband service includes a separate offering that is a

�telecommunications service� turns �on the factual particulars of how Internet technology works and how it is provided, questions that Chevron leaves to the Commission to resolve in the first instance.�

The FCC also told the court that the cable and telco ISPs challenging the decision have mischaracterized the order, an effort it said fails.

The commission said that far from not failing to gauge impact of the Open Internet order on broadband network investment, as ISP's argued in their opening brief, "the Commission expressly concluded that application of Title II, particularly as tailored by means of broad-ranging forbearance, would spur continued investment in both infrastructure and Internet content and applications� as the virtuous cycle forecasts" and that that predictive judgment is the FCC's to make under Chevron deference--the court's policy of giving extra weight to an agency's subject matter expertise in interpreting statutory mandates.

Wheeler has argued that ISP's are the ones with the incentive and opportunity to interrupt that virtuous cycle, which is why the FCC needs to buttress open Internet rules.

ISPs had told the court that they had made business decisions based on the commission's earlier classification of broadband as an information service not subject to Title II. But the FCC said that "any such reliance interests could not, of course, include future plans for investment (which could be changed), much less foreclose the Commission�s obligation to reconsider the wisdom of agency policies."

The FCC said that for a decade it had made it clear it would find the legal authority to protect an Open Internet, so it should have come as no surprise that the FCC might ultimately turn to Title II to achieve that policy goal. In any event, said the FCC, it has already explained and justified that move it its order.

The FCC said it had provided ample notice that Title II could be on the table, despite having initially proposed not reclassifying.� The initial notice of proposed rulemaking, the FCC said "noted that the Commission was 'seriously considering' reclassification, extensively discussed the subject, explained that Title II obligations would 'flow' from reclassification as a telecommunications service, and asked to what extent it should forbear from those obligations."